AGREEMENT AND PLAN OF MERGER
AGREEMENT
AND PLAN OF MERGER
This
Agreement
and Plan of Merger (hereinafter
called the “Merger
Agreement”)
is
made as of January 29, 2008, by and between PubliCARD, Inc., a Pennsylvania
corporation (“PubliCARD”),
and
Chazak Value Corp., a Delaware corporation (“Chazak”).
PubliCARD and Chazak are sometimes referred to herein as the “Constituent
Corporations.”
Whereas,
the
United States Bankruptcy Court for the Southern District of New York (the
“Bankruptcy
Court”)
has
confirmed PubliCARD’s First Amended Plan of Reorganization (as the same may be
modified or amended by the Bankruptcy Court from time to time, the “Plan
of Reorganization”);
Whereas,
the
Plan
of Reorganization provides that PubliCARD will be reorganized as Chazak under
chapter 11 of the United States Bankruptcy Code;
Whereas,
the
Plan
of Reorganization provides that, on the effective date of the plan, the common
stock and preferred stock of PubliCARD will be automatically cancelled without
further action, and that holders of Allowed Interests (as such term is defined
in the Plan of Reorganization) arising under or in connection with PubliCARD’s
common stock or preferred stock will receive, in exchange for their claims,
common stock of Chazak;
Whereas,
Chazak
has been incorporated as a wholly-owned subsidiary of PubliCARD;
Whereas,
the
authorized capital stock of PubliCARD consists of (i) 40,000,000 shares of
common stock, and (ii) 1,000 shares of preferred stock;
Whereas,
the
authorized capital stock of Chazak consists of 60,000,000 shares of common
stock; and
Whereas,
the
officers of PubliCARD, acting pursuant to Sections 6.5(b) and 6.6(d) of the
Plan
of Reorganization, and the Board of Directors of Chazak have determined that
it
is advisable and to the advantage of said corporations that PubliCARD merge
with
and into Chazak upon the terms and subject to the conditions herein
provided.
Now,
Therefore,
the
parties do hereby adopt and approve this Merger Agreement and do hereby agree
that PubliCARD shall merge with and into Chazak on the following terms,
conditions and other provisions:
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I.
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Terms
and conditions
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A. Merger.
PubliCARD
shall be merged with and into Chazak (the “Merger”),
and
Chazak shall be the surviving corporation (the “Surviving
Corporation”)
effective upon the filing of a certificate of merger with each of the Delaware
Secretary of State and the Pennsylvania Department of State (the “Effective
Time”).
B. Succession.
At
the
Effective Time, Chazak shall continue its corporate existence under the laws
of
the State of Delaware, and the separate existence and corporate organization
of
PubliCARD, except insofar as it may be continued by operation of law, shall
be
terminated and cease.
1.
C. Transfer
of Assets. At
the
Effective Time, as set forth in and subject to the Plan of Reorganization,
all
Assets (as such term is defined in the Plan of Reorganization) of PubliCARD
(including, but not limited to, PubliCARD’s equity interests in any domestic or
foreign subsidiary), wherever situated, shall vest in the Surviving
Corporation.
D. Stock
of PubliCARD and Chazak. At
the
Effective Time, subject to the Plan of Reorganization, (1) each share of common
stock of Chazak issued and outstanding immediately prior thereto shall be
canceled and returned to the status of authorized but unissued shares without
any further action on the part of the Constituent Corporations or their
shareholders, and (2) except as otherwise provided in the Plan of
Reorganization, holders of Allowed Interests (as such term is defined in the
Plan of Reorganization) arising under or in connection with the common stock
or
preferred stock of PubliCARD shall receive, in exchange for their claims, fully
paid and nonassessable shares of common stock of Chazak in accordance with
the
Plan of Reorganization.
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II.
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Charter
documents, directors and
officers
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A. Certificate
of Incorporation and Bylaws.
The
Certificate of Incorporation of Chazak in effect at the Effective Time shall
continue to be the Certificate of Incorporation of the Surviving Corporation.
The Bylaws of Chazak in effect at the Effective Time shall continue to be the
Bylaws of the Surviving Corporation.
B. Directors.
The
directors designated by the Funding Party (as such term is defined in the Plan
of Reorganization) pursuant to Section 6.2 of the Plan of Reorganization shall
become the directors of the Surviving Corporation at and after the Effective
Time, to serve until the expiration of their terms and until their successors
are duly elected and have qualified.
C. Officers.
The
officers of Chazak immediately preceding the Effective Time shall become the
equivalent officers of the Surviving Corporation at and after the Effective
Time
to serve at the pleasure of its Board of Directors.
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III.
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Miscellaneous
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A. Further
Assurances. From
time
to time, and when required by the Surviving Corporation or by its successors
and
assigns, there shall be executed and delivered on behalf of PubliCARD such
deeds
and other instruments, and there shall be taken or caused to be taken by it
such
further and other action, as shall be appropriate or necessary in order to
vest
or perfect in or to conform of record or otherwise, in the Surviving Corporation
the title to and possession of all the property, interests, assets, rights,
privileges, immunities, powers, franchises and authority of PubliCARD and
otherwise to carry out the purposes of this Merger Agreement, and the officers
and directors of the Surviving Corporation are fully authorized in the name
and
on behalf of PubliCARD or otherwise to take any and all such action and to
execute and deliver any and all such deeds and other instruments.
2.
B. Amendment.
At
any
time before the Effective Time, this Merger Agreement may be amended in any
manner as may be determined in the judgment of the respective officers of Chazak
and PubliCARD to be necessary, desirable, or expedient in order to clarify
the
intention of the parties hereto or to effect or facilitate the purpose and
intent of this Merger Agreement.
C. Abandonment
or Deferral.
At any
time before the Effective Time, this Merger Agreement may be terminated and
the
Merger may be abandoned by the officers of either PubliCARD, Chazak, or both,
or
the consummation of the Merger may be deferred for a reasonable period of time
if, in the opinion of the officers of PubliCARD and Chazak, such action would
be
in the best interests of such corporations. In the event of termination of
this
Merger Agreement, this Merger Agreement shall become void and of no effect
and
there shall be no liability on the part of either Constituent Corporation or
its
Board of Directors or shareholders with respect thereto, except that PubliCARD
shall pay all expenses incurred in connection with the Merger or in respect
of
this Merger Agreement or relating thereto.
D. Counterparts.
In order
to facilitate the filing and recording of this Merger Agreement, the same may
be
executed in any number of counterparts, each of which shall be deemed to be
an
original.
3.
In
Witness Whereof,
this
Merger Agreement is hereby executed on behalf of each of PubliCARD and Chazak
and attested to by their respective officers thereunto duly authorized as of
the
date first written above.
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PUBLICARD,
INC.,
a
Pennsylvania corporation
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| By: | /s/ Xxxxxx X. Xxxxxxxx | |
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Xxxxxx X. Xxxxxxxx, CEO |
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a
Delaware corporation
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| By: | /s/ Xxxxxx X. Xxxxxxxx | |
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Xxxxxx X. Xxxxxxxx, CEO |
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4.
